De La Espriella-Velasco v The Queen - [2006] WASCA 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DE LA ESPRIELLAVELASCO -v- THE QUEEN [2006] WASCA 31

CORAM: ROBERTS-SMITH JA
PULLIN JA
MILLER AJA

HEARD: 15-17 AUGUST, 13-14 DECEMBER 2005

DELIVERED : 10 MARCH 2006

FILE NO/S: CCA 130 of 2003
CCA 146 of 2003

BETWEEN: FERNANDO DE LA ESPRIELLAVELASCO
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
File No  :INS 131 of 2002

Catchwords:

Criminal law and procedure - Defence of duress - Whether trial Judge should have put to jury - Disallowance of answer to question in re-examination relating to duress - Whether appropriate to disallow - Admissibility of conversation between accused and his wife at prison whilst wife assisting with translation of prosecution brief - Wife made available for this purpose at instruction of the Court - Whether conversation privileged

Criminal procedure - Whether admission of evidence unfair - Whether prosecution entitled to use evidence of conversation against accused in cross-examination - Failure to disclose before cross-examination - Whether splitting of case by prosecution - Jury permitted by Judge to take English translations of recorded conversations home overnight - Whether this occasioned miscarriage of justice

Criminal law and procedure - Interpreter - Whether standard of interpretation sufficient for fair trial of accused - Whether interpreter competent - Whether errors in interpretation denied accused a fair trial

Absence of the witness - Person charged, but discharged by Court of Petty Sessions at request of prosecution - Allowed to leave Australia - Whether prosecuting authorities had obligation to keep witness in the country

Criminal law and procedure - Fresh evidence - Statements of witnesses about violent events in Colombia after trial - Whether evidence admissible as relevant to question of duress

Criminal law - Sentence - Life imprisonment with non-parole period of 26 years - Whether non-parole period excessive - Parity with co-offenders - Role played by appellant

Legislation:

Crimes Act 1914 (Cth), s 16G

Criminal Appeals Act 2004 (WA), s 30(4), s 39, s 40
Criminal Code Act 1995 (Cth), s 10.2
Criminal Code, s 687(1), s 697
Criminal Procedure Act 2004 (WA), s 110
Evidence Act 1906 (WA), s 133, s 134
Evidence Act 1995 (Cth), s 30

Migration Act 1958 (Cth), s 427(7)

Result:

Appeal against conviction dismissed
Application for leave to appeal against sentence granted
Appeal against sentence dismissed

Category: A

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr J A Davies
Respondent: Mr J V Agius QC & Mr D W L Renton

Solicitors:

Appellant: D G Price & Co
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75
Anderson v The Queen (1996) 18 WAR 244
Beamish v The Queen [2005] WASCA 62
Bekink v The Queen (1999) 107 A Crim R 415
Bunning v Cross (1978) 141 CLR 54
Button v The Queen (2002) 25 WAR 382
CDJ v VAJ (No 1) (1998) 197 CLR 172
Cheung v The Queen (2001) 209 CLR 1
Dairy Farmers Co‑operative Milk Co Ltd v Acquilina (1963) 109 CLR 458
Dietrich v The Queen (1992) 177 CLR 292
Edwards v The Queen (1993) 178 CLR 193
Filios v Morland (1963) 63 SR (NSW) 331
Gaio v The Queen (1960) 104 CLR 419
Gallagher v The Queen (1986) 160 CLR 392
Gillis & Downs v The Queen (1994) 12 WAR 493
Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414
Grant v Downs (1976) 135 CLR 674
Hillstead v The Queen [2005] WASCA 116
Jago v District Court of New South Wales (1989) 168 CLR 23
Kathiresan v Minister for Immigration and Multicultural Affairs, unreported, FCA; No VG 305 of 1997; 4 March 1998
Kunnath v The State [1993] 4 All ER 30
Lawless v The Queen (1979) 142 CLR 659
Lowndes v The Queen (1999) 195 CLR 665
Mallard v The Queen (2003) 28 WAR 1
Mallard v The Queen [2005] HCA 68
McIlkenny v The Queen [1992] 2 All ER 417
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen (2004) 29 WAR 13
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Postiglione v The Queen (1997) 189 CLR 295
R v Apostilides (1984) 154 CLR 563
R v Astill (No 2) (1992) 64 A Crim R 289
R v Bateman [2000] NSWSC 915
R v Bellissimo (1996) 84 A Crim R 465
R v Dawson [1978] VR 536
R v Durocher‑Yvon (2003) 58 NSWLR 581
R v Easterday (2003) 143 A Crim R 154
R v Emery (1985) 18 A Crim R 49
R v Evans (1995) 79 A Crim R 66
R v Gonzalez‑Betes [2001] NSWCCA 226
R v Hugo & Nasko (2000) 113 A Crim R 484
R v Hurley and Murray [1967] VR 526
R v Johnson (1986) 25 A Crim R 433
R v MacDonnell (2002) 128 A Crim R 44
R v McMaster (2004) 144 A Crim R 428
R v Olbrich (1999) 199 CLR 270
R v Reaves [2004] 147 A Crim R 26
R v Saraya (1993) 70 A Crim R 515
R v Soma (2003) 212 CLR 299
R v Suarez‑Mejia (2002) 131 A Crim R 577
R v Swaffield (1998) 192 CLR 159
R v Totten [2003] NSWCCA 207
R v Tran [1994] 2 SCR 951
R v Wright [1999] 3 VR 355
Ratten v The Queen (1974) 131 CLR 510
Roth‑Beirne v The State of Western Australia [2005] WASCA 170
Seymore Williams & Patrick Smith v The Queen (1995) 1 Cr App R 74
Smith v The Queen (1985) 159 CLR 532
Stingel v The Queen (1990) 171 CLR 312
Tau Chu, noted (1852) Aust Digest (2nd Ed) Vol 8
The King v Lee Kun [1916] 1 KB 337
Thomas v The Queen (No 2) [1960] WAR 129
Tkacz v The State of Western Australia [2005] WASCA 108
Van Den Hoek v The Queen (1986) 161 CLR 158
Webb & Hay v The Queen (1994) 181 CLR 41
Weiss v The Queen (2005) 80 ALJR 444
Wong v The Queen (2001) 207 CLR 584
York v The Queen (2005) 221 ALR 541

Case(s) also cited:

Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121
Langridge v The Queen (1996) 17 WAR 346
Miller v The Queen [1999] WASCA 66
Negron v New York 434 F 2d 386 (1970)
People v Mata Aguilar 677 P 2d 1198 (Cal 1984)
Pollard v The Queen (1992) 176 CLR 177
R v Bryer (1994) 75 A Crim R 456
R v Clarke [1996] 2 VR 520
R v Morrison [1999] 1 Qd R 397
R v Storey [1998] 1 VR 359
R v Wong (1995) 16 WAR 219
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1
Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168
Winning v The Queen [2003] WASCA 245

ROBERTS-SMITH JA: I agree with the reasons and conclusions of Miller AJA as to both conviction and sentence, but I wish to make some additional remarks in relation to ground 7 of the appeal against conviction and about the conditions of imprisonment point on the application for leave to appeal against sentence.
I have also had the benefit of reading in draft the additional reasons of Pullin JA. Whilst I do not disagree with what he has written about "fresh/new" evidence on appeal, I would prefer not to express any determinative conclusions about that without having had the benefit of full argument on the point - which was not the case on this appeal. I do agree with what his Honour says about the evidence of Ms Crespo and the further evidence sought to be relied upon by the appellant concerning events in Colombia subsequent to the trial. Specifically, I agree with his conclusion that the evidence of Ms Crespo should be admitted under s 40 of the Criminal Appeals Act 2004 (WA), but that it reveals no miscarriage of justice, and in relation to ground 3, that the evidence having been received provisionally, it was irrelevant, did not demonstrate any miscarriage of justice and should therefore not be admitted under s 40.

Ground 7: Interpretation at trial

Ground 7 asserts that:
"The trial miscarried as a result of poor quality of the translation [sic interpreting] service provided to the Applicant by the court appointed interpreter.
Particulars
a)The interpreter lacked the skill and ability to translate [sic interpret] accurately the questions put by counsel and the answers given by the Applicant.
b)The deficiencies in interpretation were such that the Applicant was unable to give an effective account of facts vital to his defence.
c)The trial miscarried notwithstanding the fact that the Applicant's counsel did not maintain her objection to the interpreter continuing to provide translation [sic interpreting] services to the Applicant."
The submissions made in support of this ground in substance encapsulate two propositions. The first is that there was such a departure from a proper standard of interpretation as to lead to an unfair trial. The second is that by reason of what were said to be certain specific inaccuracies or defects in the interpretation, the appellant was effectively denied his right to present his evidence on critical issues to the Court.
A consideration of what are appropriate standards of interpretation in a criminal trial requires some appreciation of the background of the professional discipline of translating and interpreting in Australia.
Both at trial and at the hearing of the appeal, the words "translate" and "interpret" and their derivatives were often used interchangeably. That may accord with dictionary definitions, which tend to give them the same fundamental meaning. Thus, the "Macquarie Dictionary" (2nd revised ed) defines "interpret" as "… to translate what is said in a foreign language"; and "translate" as "… to turn (something written or spoken) from one language to another". "The New Shorter Oxford Dictionary" defines "interpret" as "… to give the meaning or explanation of something" and "translate" as to "… turn from one language into another; express the sense of in another language; … make a version from one language or form of words into another".
Nonetheless, certainly at least within the translating and interpreting profession and amongst language academics, there is a quite specific distinction. It was explained by Ms Nuria Truslove, an English/Spanish interpreter called on behalf of the appellant at trial. At t/s 784 she said that:
"Interpretation is verbal and translation is written".
Ms Susana Bessell‑Browne, then Western Australian Regional Officer of the National Accreditation Authority for Translating and Interpreting ("NAATI") explained in an article "Interpreting and the Law", published in the Law Society magazine ("Brief") in Vol 19, No 9, October 1992, at 13:
"Interpreters are concerned with the spoken word. They render orally information and ideas from one language into another. Interpreters are trained to read meaning from gestures and other non‑verbal cues. They link these to the meaning expressed in words so that maximum communication is obtained …
Translators are concerned with the written word. They render written text or recorded verbal matter from one language into another. In most cases the translation is written, however, they may be required to do sight or oral translation and this occasionally is required in courts. Oral translation is a very specialised skill and to be fair to the interpreter he/she should have the opportunity to view the document beforehand. Not all interpreters are translators and vice versa, …"
The distinction is one of practical importance to the resolution of the present ground. As Lamer CJ said in R v Tran [1994] 2 SCR 951 at 958:
"… it is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection. As Steele explains, at p. 242:
'Even the best interpretation is not "perfect", in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech. For that reason, the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness.'
In this respect, it may be helpful to note the conceptual distinction that exists between 'interpretation', which is primarily concerned with the spoken word, and 'translation', which is primarily concerned with the written word. In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for."
Those remarks are particular apposite to this appeal.
NAATI gives separate accreditation for translators and interpreters. That organisation was established by the Commonwealth government in 1977. Its major objectives are to establish professional standards for interpreters and translators; establish the means by which interpreters and translators can be accredited at various levels; develop and implement a national system of registration and licensing; and to promote the use of accredited interpreters and translators in the community.
Prior to 1993 there were five levels of NAATI accreditation. They were described by Ms Bessell‑Browne as follows ("Brief" (supra), at 13):
"Level 1:Level 1 is an elementary level. At this level, persons are accredited not as interpreters and/or translators, but as 'language aides'. This level of accreditation is appropriate for persons who are capable of using a minimal knowledge of a language for the purpose of simple communication. This capacity may be a useful adjunct in performing their principal duties.
Level 2:Level 2 represents a level of ability for the ordinary purposes of general business, conversation, reading and writing. This level is generally suitable for those who use a second language as part of their principal duties.
Level 3:Level 3 is the first professional level for general purpose translating and interpreting. In some cases, practitioners may specialise in particular areas or subjects.
Level 4:Level 4 is the first professional level for specialist translating and interpreting. Interpreters working at this level are expected to be capable of both consecutive and simultaneous interpreting at international economic, scientific and political meetings and conferences. Translators working at this level are expected to be capable of translation of highly complex economic, scientific, legal and political documents. Level 4 interpreters and translators are expected to operate, under supervision, at high levels of proficiency, compatible with general international standards.
Level 5:Level 5 is the highest level of NAATI accreditation and will, therefore be represented by a small group of interpreters and translators. Interpreters and translators working at this level will have satisfied all the requirements for Level 4 and, in addition, will have proven extensive experience and demonstrated leadership in the field. They should also be capable of supervising and planning the work of a team of interpreters and translators." (Emphasis in original)
The system was revised in 1993‑1994 (see Laster and Taylor, "Interpreters and the Legal System", Federation Press, 1994 at 33 ‑ 34). The five levels were reduced to four. The first level of accreditation now is "Para‑professional Interpreter" (formerly Level 2). This represents a level of competence in interpreting for the purpose of general conversations. Para‑professional interpreters generally undertake the interpretation of non‑specialist dialogues. The next level is "Translator and/or Interpreter" (formerly Level 3). This is the first professional level and represents the minimum level of competence for professional interpreting or translating. Interpreters at this level are capable of interpreting across a wide range of subjects involving dialogues at specialist consultations and doing so by the consecutive mode of interpretation. The third level is that of "Advanced Translator and/or Conference Interpreter" (formerly Level 4). This is the advanced professional level, representing competence to handle complex/technical/sophisticated interpreting and translating. According to Laster and Taylor (supra), (at 34), interpreters at this level practice both consecutive and simultaneous interpreting and convey the full meaning of complex information from the source language into the target language in the appropriate style and register.
The final level is that of "Advanced Translator (Senior) and/or Conference Interpreter (Senior)" (formerly Level 5). That is the highest level of NAATI accreditation and reflects both competence and experience.
It is important to note that, first, none of the NAATI levels of accreditation involve specialist examination or legal interpreting accreditation. All are generalist levels, although individuals may choose to specialise in particular areas such as law, medicine, social work or the like. Secondly, the majority of interpreters currently working in the courts in Australia are accredited at "Interpreter" level (the old Level 3). Finally, there is a strong academic view that the NAATI examination, at any level, is not adequate to test court interpreters (see "The Discourse of Court Interpreting", Associate Professor Sandra Hale, John Benjamins Publishing Co, 2004, [2.3.1]).
In this case the Court file shows that Mr C was engaged by the Court, through the Telephone Interpreter Service ("TIS") of the Department of Immigration, Multicultural and Indigenous Affairs ("DIMIA"). The file does not reveal his level of NAATI accreditation.
Although there is greater recognition now by Judges and the legal profession of the process of interpretation and the forensic importance of it for cases involving persons who are not fluent in English, that recognition is relatively recent and is by no means complete.
The first Australian authority of note concerning interpreters was Gaio v The Queen (1960) 104 CLR 419. Remarks from the judgments in that case have often been taken as authority for a proposition that an interpreter must interpret into the target language, "word for word", exactly what is said in the source language and vice versa. That proposition is founded upon a misconceived understanding that the process of interpreting from one language to another is purely mechanical. As Ms Crespo made clear in the present case, the process is much more complex than that, which itself bears upon the issue of the quality or standard of interpretation. I shall return to this shortly, but make the point here that the judgments in Gaio were not concerned with any consideration of the linguistic, cultural or social aspects of the interpretation process. The question in that case was confined to an objection that evidence given by a patrol officer of a confession made to him through a native interpreter was inadmissible as hearsay. The observations by the members of the Court that the process was analogous to use of a machine were directed to the legal distinction between a witness recounting what someone else has told him (hearsay) and a witness recounting a conversation held with an accused through the medium of an interpreter (direct evidence of what the accused said). Thus, it was in that context that McTiernan J, who was in dissent, said (at 422) that in his opinion there was no analogy between the mechanical reproduction of a verbal statement and the translation by an interpreter from the language in which it is made to him, into the language of the third person; whereas Kitto J, one of the majority, said (at 431) that the interpreter acted only as a translating machine ("so to speak"). As Kitto J went on to say, on that view, the evidence was not hearsay because what the interpreter said to the patrol officer had none of the subjective elements which characterises the giving of a person's own account of something that person has seen or heard.

An accused charged with an offence in a criminal trial in Western Australia has no statutory right to an interpreter, although s 133 and s 134 of the Evidence Act 1906 (WA) provide for persons acting as interpreters in court to be sworn or affirmed for that purpose. I note that s 30 of the Commonwealth Evidence Act 1995 gives a witness a right to give evidence through an interpreter unless the witness can understand and speak the English language sufficiently to enable them to understand, and to make an adequate reply to, questions that may be put.
A seminal common law authority on the right of an accused to an interpreter at trial is The King v Lee Kun [1916] 1 KB 337. The accused was a Chinese national who did not understand the English language. He was convicted of murder. No application was made at trial for the evidence to be interpreted to him. None of it was. However, the same counsel and solicitor had appeared for the accused at his preliminary hearing before a Magistrate, on which occasion all the evidence was interpreted to him. The evidence given at the preliminary hearing and at the trial was the same. The Court of Appeal refused leave to appeal on the ground that whether or not the failure to interpret the evidence at trial was an irregularity, there had been no substantial miscarriage of justice because if the evidence had been interpreted to the accused, the same verdict would inevitably have resulted.
Notwithstanding that conclusion, the Court (Lord Reading CJ, Scrutton and Low JJ) dealt with "the abstract question" raised, (at 340 ‑ 341):
"When a foreigner who is ignorant of the English language is on trial on an indictment for a criminal offence and is undefended, the evidence given at the trial must be translated to him. If he states that he understands part of the evidence and does not wish that part translated, unless the judge in his discretion thinks otherwise, it need not be translated, because the object of the translation is already achieved. … If he does not understand the English language, he cannot waive compliance with the rule that the evidence must be translated; he cannot dispense with it by express or implied consent, and it matters not that no application is made by him for the assistance of an interpreter. It is for the Court to see that the necessary means are adopted to convey the evidence to his intelligence, notwithstanding that, either through ignorance or timidity or disregard of his own interest, he makes no application to the Court."
Of particular importance to the present case is the jurisprudential rationale articulated by Lord Reading CJ, which his Lordship based squarely upon the reason for requiring the accused to be present at his or her trial. At 341 he said:
"No trial for felony can be had except in the presence of the accused, unless he creates a disturbance preventing a continuance of the trial: see Stephen's Digest of Criminal Procedure, p 194, and Reg v Berry (1897) 104 LT Jour 110, per Wills J. Even in a charge of misdemeanour there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity, having heard it, of answering it. The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings. The prisoner may be unable, through insanity or deafness or dumbness, or the combination of both conditions, to understand the proceedings or to hear them, either directly or by reading a record of them, or to answer them either by speech or writing … "
And at 342:
"… If the accused is fit to plead it may yet be that no communication can be made in the ordinary way; it may be that he is deaf and can only be approached by writing or signs, or dumb, and can only make his views known by writing or signs, or a foreigner who cannot speak English and requires the assistance of an interpreter to understand the proceedings and make answer to them. In such cases the judge must see that proper means are taken to communicate to the accused the case made against him and to enable him to make his answer to it. In the case of a foreigner ignorant of the English language who is undefended no difficulty has arisen in practice. The evidence is always translated to him by an interpreter."
In 1963 the Full Court of the Supreme Court of New South Wales held in Filios v Morland (1963) 63 SR (NSW) 331 that there was no right in a witness (whether a party or not) to give evidence in his or her native language through an interpreter. That was a civil appeal from a judgment in a road accident case. Counsel submitted that the plaintiff, who was Greek, was entitled to give his evidence through an interpreter. The trial Judge ruled he would not allow that unless satisfied the plaintiff was not able to give his evidence without one. At no stage during the plaintiff's evidence did the Judge consider it necessary to have resort to the interpreter and nor did counsel renew the application.
In dismissing the appeal, Brereton J (with whom Manning and Else‑Mitchell JJ agreed) said (at 332) that the primary consideration was that what the witness had to say should be put before the court as fully and accurately, and as fairly and effectively, as all circumstances permitted. His Honour allowed that it may be that a witness with an imperfect understanding of English cannot achieve this by using English. His Honour then added:
"It is not always the case that it will be better achieved by the use of an interpreter. For evidence given through an interpreter loses much of its impact, and this is so in spite of the expert interpretation now readily available. The jury do not really hear the witness, nor are they fully able to appreciate, for instance, the degree of conviction or uncertainty with which his evidence is given; they cannot wholly follow the nuances, inflections, quickness or hesitancy of the witness; all they have is the dispassionate and unexpressive tone of the interpreter. Moreover, even today it is all too common an experience to hear the interpreter giving the effect instead of giving a literal translation of questions and answers, and of his own accord interpolating questions and eliciting explanations. These matters may operate unfairly either to the advantage or to the disadvantage of the witness involved.
Moreover, and especially where the witness has some knowledge of English, the cross‑examiner is placed at a grave disadvantage."
These complaints about the quality and effect of interpreters in court were typical of the time. In Australia at that time, there was no recognised translating/interpreting profession and those persons who appeared or practised as interpreters were most often simply bilingual (or partly so) persons from the particular ethnic community, often relatives or friends of the non‑English speaker (Hale, op cit, p 15 ‑ 17; Laster and Taylor, op cit, p 14 ‑ 18). It is not surprising there were manifest inadequacies. Laster and Taylor instance a case in 1989 in which a cleaner was called upon to interpret in Italian in a Brisbane court. Her services were dispensed with (as were those of a second interpreter) as unsuitable, when the Judge realised she had insufficient English to perform the task (ibid p 43; 91).
The holding in Filios v Morland that there is no rule that a witness is entitled as of right to give evidence in his or her native tongue through an interpreter was approved by the High Court later that year in Dairy Farmers Co‑operative Milk Co Ltd v Acquilina (1963) 109 CLR 458. That was also a civil case, as was Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414.
Gradidge was a case stated from the Compensation Court of New South Wales. The appellant was a deaf mute. An interpreter was sworn to interpret in the deaf manual/visual sign language. In the course of the appellant's examination‑in‑chief, objection was taken to a question. Legal argument ensued. The respondent's counsel noticed the interpreter was interpreting the argument to the appellant and objected. The appellant's counsel indicated he did not require that to be interpreted to the appellant. The Judge directed the interpreter to desist. The interpreter refused, informing the Judge that she saw it as her function to interpret to the appellant everything which took place in the court. The Judge was not prepared to continue on that basis. He adjourned the hearing and stated questions of law for the opinion of the Court of Appeal concerning his ruling.
The Court held the Judge had erred in directing the interpreter to desist. The appellant was a party and entitled to know what was happening. Unless excluded from the court, she was entitled to have the proceedings interpreted to her.
Kirby P (as he then was), saw the case as involving an important issue of due process. The principle of an open trial in public exists for a purpose. That purpose is to publicly demonstrate the correctness and justice of the court's determination according to law. The purpose must extend to the parties themselves, for they are most affected. The reasons given by a court for its decision may not be fully understood unless the evidence called and counsels' exchanges with the Bench are understood by the parties, including those who have disabilities of communication or who are not fluent in the English language (417).
His Honour said (at 418 ‑ 419):
"In earlier times, when Australia was comprised of a generally homogeneous English‑speaking population, we were less sensitive than we are now to the difficulties of persons appearing in our courts without the advantage of proficiency in the English language …
Times have changed … "
His Honour then referred to Filios and Acquilina, observing that since the latter decision the principle established by the case has been often applied, despite criticism by ethnic commentators and law reformers that it ignored, or was inappropriate to, the changing nature of Australia's ethnic composition, or that it weighed the scales too heavily against the right to have an interpreter. His Honour reiterated that in recent years, courts have begun to reflect a growing appreciation of the importance of allowing persons to communicate with the court in their own language.
Kirby P then referred to R v Johnson (1986) 25 A Crim R 433, noting that Shepherdson J had there called attention to Tau Chu, noted (1852) Aust Digest (2nd Ed) Vol 8, par 408 and Lee Kun (supra), neither of which apparently had been cited to the Court of Appeal in Filios nor to the High Court in Acquilina. His Honour then continued (at 422):
"The criticisms of the decisions in Acquilina and Filios have appeared in a large number of legal commentaries. They have generally been directed at the assumption, which appears to lie behind the reasoning of those decisions, that the task of an interpreter is purely mechanical, that is, it involves the word for word translation into the English language from another language and vice versa. Greater knowledge of language and communication teaches that this is not so. This was pointed out in the Australian Law Reform Commission interim report on Evidence. I agree with the criticisms which are there expressed."
In relation to the particular case, his Honour acknowledged (at 423) Acquilina and Filios established that a judicial discretion exists to control the use of interpreters, but:
"It is a discretion to be exercised properly and having regard to the object of providing it to the judge. It is not at large to be exercised on the basis of idiosyncratic opinions. Nor is it to be exercised by reference to any personal views that a judge may hold. It must be exercised, as the Court of Criminal Appeal of Queensland stressed, with the object of attaining a fair trial for the parties in the court."
The point of distinction his Honour saw between that case and those two authorities referred to, was that in the case before the Court the discretion had already been exercised in favour of the entitlement to have an interpreter. Thus, if the appellant was not excluded from the court, she was entitled to have the proceedings interpreted to her.
As to the proposition that counsel had waived the appellant's right to continuing interpretation, Kirby P's opinion was that counsel's authority does not extend so far as to waive a basic entitlement to fair procedures in the conduct of a trial - or at least it did not do so in the circumstances of that case.
Samuels JA was in general agreement with Kirby P. To his Honour, the principle was clear enough: it must be that any party who is unable (for want of some physical capacity or for lack of knowledge of the language of the court) to understand what is happening must, by the use of an interpreter, be placed in the position in which he or she would be if those defects did not exist. His Honour said (at 425):
"The task of the interpreter in short is to remove any barriers which prevent understanding or communication. This must, of course, be subject to the overriding right of the judge, first to determine whether those barriers exist and, secondly, to decide in what way the corrective mechanisms may be applied without disrupting or adversely affecting the forensic procedures which he is charged to undertake."
His Honour emphasised (at 426) that the task of an interpreter is not restricted merely to passing on the questions when the party is giving evidence, but must be extended also to apprising a party of what is happening in the court and what procedures are being conducted at a particular time. It is quite wrong to imagine that all an interpreter is supposed to do is to interpret questions for a person in the witness box.
The notion that an entitlement to an interpreter (whether for a witness or the accused) in a criminal trial is an aspect of the accused's right to a fair trial, was explained by the Queensland Court of Criminal Appeal in Johnson (supra). Shepherdson J preferred not to attempt to state any hard and fast guidelines for a trial Judge faced with an application for an interpreter to be brought in for a witness but left the matter on the basis that the "guiding star" is the need to ensure a fair trial for an accused person. His Honour said that with that guiding star as the backdrop, there are two needs to be considered. They are the need of a jury to hear and understand a witness's evidence and the need of an accused to hear and understand a witness's evidence.
Williams J expressed the view (at 440) that ultimately the decision whether or not a witness should have an interpreter will be answered in the light of the fundamental proposition that the accused must have a fair trial.
Derrington J said (at 442) that in deciding whether to have an interpreter for any witness, the only consideration is the interests of justice in the case, it being remembered that the accused is on trial and his interests must be properly protected.
The principle that denial of a fair trial constitutes a miscarriage of justice such that a conviction following it must be quashed, was made clear by the High Court in Dietrich v The Queen (1992) 177 CLR 292. The circumstance there constituting the miscarriage of justice was the denial of legal representation to an indigent accused charged with a serious offence, through no fault of his own.
As Mason CJ and McHugh J pointed out at 299, the right of an accused to a fair trial according to law is a fundamental element of the Australian criminal justice system - although they agreed with the formulation of the principle by Deane J in Jago v District Court of New South Wales (1989) 168 CLR 23 at 56, that the principle is more accurately expressed as a right not to be tried unfairly. There has been no judicial attempt to list exhaustively the attributes of a fair trial (Mason CJ and McHugh J, 300) although their Honours pertinently observed that various international instruments and declarations of rights in other countries have attempted, albeit broadly, to define some of them - one such being the right to free assistance of an interpreter when required (European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(3)(e); International Covenant on Civil and Political Rights, Article 14 (to which Australia is a party); Canadian Charter of Rights and Freedoms, s 11 [sic]).
Deane J described the principle that no person should be convicted of a crime except after a fair trial according to law, as "the fundamental prescript of the criminal law of this country" (326). Toohey J said (at 353) that "the right to a fair trial is engrained in our legal system". Gaudron J also described the right as "fundamental" (362), adding that the law recognises that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law, which is why the overriding qualification and universal criterion is fairness.
Again, pertinently to the present case, one example Deane J gave (at 331) of circumstances which would constitute an unfair trial, was the denial of an interpreter to an accused who needed one, and Gaudron J instanced the need to allow evidence through an interpreter as an example of a modification of procedure which may be necessary to meet the requirement of a fair trial (at 363).
The principle enunciated in Dietrich was applied in R v Saraya (1993) 70 A Crim R 515, in which the New South Wales Court of Criminal Appeal held the interpretation of the appellant's evidence at trial was so deficient as to have amounted to a denial of a fair trial and hence a miscarriage of justice.
The appellant was convicted of supplying heroin. He claimed at trial that he was acting under duress. He gave evidence and was cross‑examined through an interpreter. His cross‑examination went into a second day, with a different interpreter. On the appeal, the Court admitted the evidence of an expert who identified many deficiencies in the interpretation of the questions put by the Crown prosecutor and the answers given by the appellant, on the second day.
Badgery‑Parker J (with whom Kirby ACJ and Loveday AJ agreed) said (at 516) that he was satisfied the deficiencies in interpretation were such that the appellant was unable to give an effective account of the facts vital to his defence:
"The fact that the defence was, as it seems to me, a weak one made it even more important to the fairness of the trial that he should have been able to explain to the jury clearly and vividly the facts on which he relied to discharge the evidentiary onus which would put the Crown in the position of having to exclude any reasonable possibility that the offence was committed under duress: cf Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424.
Where an accused person is unable adequately to give evidence in the English language, the right to the use of an interpreter for the purpose of his giving evidence must in my view be regarded as an essential incident of a fair trial; and the trial will be unfair if an interpreter is not provided: Dietrich (1992) 177 CLR 292; 62 A Crim R 176. Equally, it will be unfair if the interpreter lacks the skill and ability to translate accurately the questions asked by counsel and the answers given by the accused person."
The way in which an appellant may demonstrate incompetent or deficient interpretation, and the extent of departure from what is a necessary standard of interpretation, were aspects which fell for consideration by Kenny J in the context of an application for judicial review of a decision of the Refugee Review Tribunal in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.
The applicant gave evidence before the Tribunal in Sinhalese, by means of an interpreter. His migration agent subsequently made written submission noting there was no NAATI accreditation for Sinhalese interpreters and that the interpreter had become confused on a number of occasions at the hearing and that needed to be taken into account in assessing the evidence and the credibility of the applicant. In its determination, the Tribunal noted that neither the adviser nor the applicant made any comments about the interpreter during the hearing and that the claim had been made only afterwards. The Tribunal did not accept that the interpreter did not competently interpret the material presented by the applicant.

One of the grounds of appeal in the Federal Court was that the Tribunal erred in law in failing to provide "adequate or proper interpreter services". Counsel for the applicant relied upon the transcript of the Tribunal hearing to support a submission that the interpretation was incompetent. The argument was founded primarily on s 427(7) of the Migration Act 1958 (Cth), which specifically provides that where a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with them proceed through an interpreter.
Kenny J was prepared to accept that the absence of an interpreter for an applicant who required one, would mean the Tribunal had no jurisdiction. Her Honour began her consideration by summarising the effect of the authorities (at [18] ‑ [19]):
"18In criminal trials, there is a rule that an accused must be physically present in court. The rule, it is said, is intended to ensure that the accused is able to hear the case against him and to have an opportunity to answer it. The same rationale is said to inform the approach taken in the criminal courts with respect to the use of interpreters. In the case of an accused who is not sufficiently proficient in English to understand the proceedings or to make himself understood, the trial judge must, as part of his duty to ensure a fair trial, see to it that the accused receives the assistance of a competent interpreter: Dietrich v R (1992) 177 CLR 292 at 331 per Deane J; R v Saraya (1993) 70 A Crim R 515 at 516 per Badgery-Parker J (with whom Kirby ACJ and Loveday AJ agreed); R v Johnson (1987) 25 A Crim R 433 at 435 per Shepherdson J and 442-443 per Derrington J; R v Lee Kun [1916] 1 KB 337 at 341–343 per Lord Reading CJ; Kunnath v State [1993] 1 WLR 1315 at 1319–1321 (PC); R v Begum (1985) 93 Cr App R 96 at 100–101; R v Tran [1994] 2 SCR 951 at 963 and United States ex rel Negron v New York (2nd Cir 1970) 434 F 2d 386.
19For similar reasons, there may be a need for the services of an interpreter in a civil proceeding: cf Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 423–424 per Kirby P, 425 per Samuels JA and 427 per Clarke JA and Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 81 per Mahoney JA."
As her Honour saw it, the applicant's submission that the quality of the interpretation was so poor that the Tribunal did not give him an effective opportunity to give evidence, depended upon consideration of the role of the interpreter in a Tribunal hearing and the standard of interpretation appropriate to that role.
On the first, her Honour understood the function of an interpreter as being to convey in English what has been said in another language, and vice versa, so as to place the non‑English speaker as nearly as possible in the same position as an English speaker. Importantly, her Honour recognised (at [25] ‑ [26]) that:
"25Notwithstanding that Kitto J described an interpreter as 'a bilingual transmitter' or 'a translating machine' (in Gaio v R (1960) 104 CLR 419 at 430–431), interpretation is no mere mechanical exercise: see eg, Michael B Shulman, 'Note: No Hablo Ingles: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants' (1993) 46 Vand L Rev 175 at 177. Interpreting reliably involves both technical skill and expert judgment. See, for example, K Polack and A Corsellis, 'Non-English speakers and the criminal justice system — Part 2' New Law Journal, 30 November 1990, at 1676 and Commonwealth Attorney-General's Department, Report on Access to Interpreters in the Australian Legal System, (AGPS Canberra, April 1991) para 5.2.1.
26Perfect interpretation may, moreover, be impossible. As L Robinson observed in Handbook for Legal Interpreters (Law Book Co Ltd, 1994), p 98 '[v]ery rarely is there an exact lexical correspondence between the two languages being used.' Schulman writes (at 177):
'No matter how accurate the interpretation is, the words are not the defendant's nor is the style, the syntax, or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony.' (citations omitted)
Nonetheless, some interpretations will be better than others, and a particular interpretation may well be less than perfect yet acceptable for the Tribunal's purposes. How bad must an interpretation be to render reliance on it reviewable error? By what criteria is the quality of an interpretation to be assessed?"
In answering these questions, Kenny J turned to R v Tran (supra), a decision of the Full Bench of the Supreme Court of Canada, delivered by Lamer CJ on the right to an interpreter enshrined in s 14 of the Canadian Charter of Rights and Freedoms. Her Honour noted the criteria identified in Tran as defining a standard of forensic interpretation included, but were not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness. The criteria which her Honour considered were in question in the case before her, were precision and competence.
As to the former, she observed (at [29]) that there is rarely exact lexical correspondence but, even so, some interpretations are better than others. Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a "first flight" interpreter, it must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
As to the latter, Kenny J quoted a passage from the judgment of Lamer CJ at 988 of Tran, explaining the proposition that interpretation must be of a high enough quality to ensure that justice is done and seen to be done. She noted that competency may relate to both the interpretation and the interpreter.
Her Honour proceeded to deal with the question whether the applicant needed an interpreter at all. That question does not directly arise in the present case, as it seems to have been accepted that the applicant did require an interpreter, although there were occasional references to him apparently having a better understanding of English than had been suggested. Nonetheless, it is apposite to recognise that some understanding, or even some degree of fluency, in the English language does not necessarily mean a person does not require an interpreter to adequately understand the case and to adequately convey their own evidence to the court (the difficulties confronted by persons with sufficient English for most daily purposes, but who are confronting unusual or stressful situations, are discussed generally by Hale (supra), ch 1; and in "Communication Breakdown" Legal Service Bulletin, Vol 14 No 2, April 1989; "Working with Interpreters in Law, Health & Social Work", NAATI, 1990, 11 ‑ 18, 31 ‑ 35). In that regard, Kenny J thought (at [34] ‑ [35]) the following passage from the judgment of Kirby P in Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75, at 77 ‑ 78, was apt to the situation of persons such as the applicant, who is able to use English for some purposes, even professional purposes, but is insufficiently proficient to give evidence before the Tribunal in support of an application vital to their future prospects:
"The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person's own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law … Those who, in formal public environments, of which courts are but one example, have struggled with their own imperfect command of foreign languages, will understand more readily the problem then presented. The words which come adequately in the relaxed environment of the supermarket disappear from recollection. The technical expressions cannot be recalled, if ever they were known. The difficulties cause panic. A relationship in which the speaker is in command … is quite different from a potentially hostile environment of a courtroom. There, questions are asked by others, sometimes at a speed and in accents not fully understood."
The final question for her Honour in Perera was whether there was a relevant departure from the standard of interpretation. She concluded there had been. Factors which her Honour thought might bear upon that included the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter. Her conclusion (at [42]) from examination of the transcript was that whilst it was possible to divine the general thrust of the applicant's case, his evidence, as given through the interpreter, was repeatedly unresponsive to the questions asked, at times incoherent and inexplicably inconsistent with other evidence given. There was a number of exchanges between the interpreter and the Tribunal which evidenced confusion on the interpreter's part and from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry. The applicant's evidence, as interpreted and transcribed, lacked the responsiveness and coherence of the well‑educated person that he apparently was. It was also relevant that the applicant made timely complaint about the quality of the interpretation.
Accepting that it is not every departure from the standard of interpretation that prevents an applicant from giving evidence before the Tribunal and that the departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision, her Honour was satisfied that the departure did relate to matters which were of such significance and that he had been prevented from giving evidence on matters relevant to his application. That conclusion was enough to dispose of the application for review. Nonetheless, her Honour agreed with the observations of Gray J in Kathiresan v Minister for Immigration and Multicultural Affairs, unreported, FCA; No VG 305 of 1997; 4 March 1998 at 6:
"[48]…
'In an area in which cross‑cultural communications occur, there is danger in giving too much rein to the "subtle influence of demeanour". The work of tribunals operating under the Act is such an area. The dangers of attempting to assess the truthfulness of witnesses by reference to their body language, where different cultural backgrounds are involved, are well known … The problem is exacerbated even more when evidence is given by way of an interpreter. Judging the demeanour of the witness from the tone of the interpreter's answers is obviously impossible. Judging the demeanour of the witness from the witness's own answers in a foreign language would require a high degree of familiarity with that language and the cultural background of its speakers. It is all too easy for the "subtle influence of demeanour" to become a cloak, which conceals an unintended, but nonetheless decisive bias …'
[49]A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation."
I agree with these observations. This is not to disagree with what Miller AJA says (at [366] ‑ [367]) about the importance in this case of the jury having had the opportunity to watch the appellant give evidence and to note the promptness and fluency with which he answered in Spanish, the questions put to him. His Honour was not there discussing the forming of impressions of credibility from demeanour in the ordinary sense, but rather pointing out that the jury were able to observe that hesitation, apparent confusion or uncertainty in the responses given by the interpreter were not reflecting the prompt, assured and apparently fluent style of the appellant's answers in Spanish.
The most exhaustive examination of an accused's right to an interpreter in a criminal trial and the standards of interpretation by which the fulfilment of that right may be gauged, is to be found in Tran (supra). The accused was Vietnamese. Identity was in issue at trial. The interpreter at trial had previously interpreted at the appellant's first court appearance a couple of months after the offence and subsequently at his preliminary hearing. At trial, the appellant's weight and build were different from the description given by the complainant to police. A police officer gave evidence that at the time of his arrest, the appellant's weight and build was similar to the description. The defence called the interpreter to the witness box to give evidence of the appellant's appearance at the first court hearing. Although the interpreter was instructed by the trial Judge and defence counsel to interpret his testimony in full to the appellant as he gave it, he did not do so. Instead, he answered in English and only gave a summary in Vietnamese of his evidence at the conclusion of his examination‑in‑chief and again at the end of his cross‑examination.
The Court of Appeal held that there was no doubt the appellant was entitled to a full interpretation, and not mere summaries, of all testimony and proceedings, which should have been as nearly simultaneous with the actual testimony as possible. It held further that the interpretation by a witness of his own evidence "is not a practice to be encouraged" and there could be no doubt the interpreter's interpretation of his own evidence fell short of an ideal standard. Nonetheless, the departure from best standard was not so serious that it could be said to have deprived the appellant of the right to be present at his trial, nor to make full answer and defence. The evidence was of minor probative value and the appellant was made aware of the gist of it. The appeal was dismissed.
A further appeal to the Supreme Court of Canada was upheld, however, and a new trial ordered. That Court held there had been a clear breach of s 14 of the Canadian Charter. Such a breach was, by its very constitutional nature, a serious error of law which could not be characterised as minor or harmless, or a "procedural irregularity" sufficient to allow resort to the proviso expressed in s 686(1) of the Criminal Code of Canada.
Delivering the judgment of the Court, Lamer CJ traced the evolution of the fundamental right of an accused at common law to the assistance of an interpreter in a criminal trial, not as a separate right, but as an incident of the right to a fair trial. The Chief Justice pointed out the dictum of Lord Reading CJ in Lee Kun had been expressly approved and applied by the Privy Council in Kunnath v The State [1993] 4 All ER 30. There, the appellant, an uneducated Indian peasant, working as a cleaner in a Bombay guesthouse, was prevailed upon by his employer to travel to Mauritius and deliver a bag to a person whose identity would be revealed to him on arrival. He was provided with air tickets and promised a small reward when he returned to India. When he arrived in Mauritius, Customs officers at the airport found heroin in a false bottom of his bag and he was arrested. He maintained he was unaware that the bag contained heroin. His native language was Malayalam and at his trial, which was conducted in English, he was represented by counsel. The interpreter was under the impression that he could only interpret on the instruction of the presiding Judge. He interpreted the charge to the appellant at the beginning of the trial and the appellant's statement to the Court from the dock, but none of the evidence. In his statement from the dock the appellant stated that he had not understood what the witnesses had said. He was convicted and sentenced to death. His appeal to the Mauritius Court of Criminal Appeal on a number of grounds including the lack of interpretation, was dismissed, notwithstanding that the constitution of Mauritius provided that a person charged with a criminal offence had a right to the assistance of an interpreter if he could not understand the language used at the trial. The appeal was dismissed on the ground that if an accused or his counsel did not claim that right at the trial, the lack of an interpreter could not be a ground of appeal. As Lamer CJ pointed out in Tran (at 966), although the case raised the issue of the Mauritius constitution, the Privy Council decided the case on the basis of common law principles. The Privy Council held that an accused who has not understood the conduct of proceedings against him could not, in the absence of express consent, be said to have had a fair trial. On the facts it must have been obvious to the Judge that the interpreter was not interpreting the evidence to the appellant and having regard to his statement from the dock, his lack of comprehension must have been fairly and squarely before the court. In those circumstances, the trial had, for all practical purposes been conducted without his presence, he had accordingly been deprived of the opportunity of a fair trial and a substantial miscarriage of justice had occurred.
In quashing the conviction, the Privy Council wrote (at 35):
"It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the accused …. As their Lordships have already recorded, the basis of this principle is not simply that there should be corporeal presence but that the accused, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him ... An accused who has not understood the conduct of proceedings against him cannot, in the absence of express consent, be said to have had a fair trial." (Citations omitted)
Lamer CJ said (Tran, 967) that the decision in Kunnath and the previous cases in the Supreme Court of Canada, confirmed that a person facing criminal charges who does not speak or understand the Court's language, has the right under common law to be provided with an interpreter and the right to interpreter assistance is a means of ensuring the proceedings are fair and comply with the basic principles of natural justice.
Although Lamer CJ then turned to a consideration of the position under the Canadian Charter, which is not directly referrable to the present case, what he said about the extent and purpose of the right to an interpreter is, in my view, apposite to the issues raised in this appeal. His Honour summarised the position at 975:
"It is clear that the right to the assistance of an interpreter of an accused who cannot communicate or be understood for language reasons is based on the fundamental notion that no person should be subject to a Kafkaesque trial which may result in loss of liberty. An accused has the right to know in full detail, and contemporaneously, what is taking place in the proceedings which will decide his or her fate. This is basic fairness. Even if a trial is objectively a model of fairness, if an accused operating under a language handicap is not given full and contemporaneous interpretation of the proceedings, he or she will not be able to assess this for him or herself. The very legitimacy of the justice system in the eyes of those who are subject to it is dependent on their being able to comprehend and communicate in the language in which the proceedings are taking place."
It is not necessary here to visit the Chief Justice's analysis of the constitutional right to an interpreter under the Canadian Charter, save to note that where the claimed denial of the right is said to be some alleged deficiency in interpretation such as to constitute an effective denial, the standard to be applied is one of continuity, precision, impartiality, competency and contemporaneousness. That seems to me to be an appropriate framework of analysis for the purpose of the right at common law and I would adopt it.

In the instant case the alleged deficiencies go to continuity, precision and competency.
A further consideration identified by Lamer CJ in the context of the constitutional right, was that the claimant must show the alleged lapse in interpretation occurred in the course of the proceedings where the vital interest of the accused was concerned, that is to say, while the case was being advanced, rather than at some extrinsic or collateral point.
In his consideration of what was the standard of interpretation guaranteed by the Canadian Charter, Lamer CJ acknowledged (985) that while it will be high and judged by the above criteria, it should not be one of perfection.
On the need for precision (which he thought was "self‑evident" (986)), his Honour quoted with approval the following passage from Steele, "Court Interpreters in Canadian Criminal Law" (1992) 34 Crim LQ 218 at 240 ‑ 241:
"… the interpretation must be, as close as can be, word‑for‑word and idea‑for‑idea; the interpreter must not 'clean up' the evidence by giving it a form, a grammar or syntax that it does not have; the interpreter should make no commentary on the evidence; and the interpretation should be given only in the first person, e.g., 'I went to school' instead of 'he says he went to school'."
This necessity for precision, according to his Honour, is an additional reason why summaries are most unlikely to meet the general standard of interpretation required under the Charter.
As to competence, whilst there are no universally acceptable standards for assessing competency, an interpreter must at least be sworn by taking the interpreter's oath before beginning to interpret the proceedings (Lamer CJ, ibid 988). That was done here.
His Honour observed that where there is a legitimate reason to doubt the competency of a particular interpreter, a court would be well‑advised to conduct an inquiry into the interpreter's qualifications. For myself, I would add that it will ordinarily be prudent for an interpreter to be required to state their qualifications for the record before being sworn or affirmed. The present case is a good illustration of the desirability of that being done. It also recognises the principle at common law that it is the responsibility of the trial Judge to ensure that adequate interpretation is afforded the accused or witness.
I respectfully endorse the approach taken by Kenny J in Perera (at [29]) that the interpreter must express, in the target language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the source language. The individual aspects of this expression of what is required, are important. The reference to the "idea or concept" being expressed acknowledges that the process of interpretation is not merely the substitution of a word in one language for an equivalent word in the other and that there is often a lack of semantic equivalence. That, and social or cultural differences may mean that even the "idea or concept" itself has no equivalent in both societies. The point sought to be made about the expression "patrón de puerto" in this case seems to be an example of this. It also acknowledges that, as Ms Crespo explained, language interpretation deals with units or "bundles" of meanings, not words, or what is described as "literal" interpretation. "The circumstances" obviously include the pressures of time and lack of opportunity for the interpreter to consider, determine and convey precise meaning. The requirement that the idea or concept be interpreted as it has been expressed in the source language, includes the notion of appropriate register, or conservation of meaning. That is to say, the form and level of expression of what the interpreter says in the target language should reflect the form and expression used by the witness in the source language.
The first complaint made here is that there was a lack of continuity in that the interpreter failed to interpret, or did not completely and accurately interpret, discussions between the Judge and counsel. For the reasons I have explained, it would not be sufficient for the appellant merely to demonstrate a lack of continuity in this sense. It must be shown that as a consequence of that deficiency, either alone or in combination with some other deficiency, the trial was unfair - and that it was so unfair as to constitute a miscarriage of justice. Furthermore, unlike the situation in Tran where breach of a constitutionally guaranteed right itself inevitably amounted to a substantial miscarriage of justice, a conviction may yet not be set aside if the respondent were to satisfy the Court there was no substantial miscarriage of justice (s 30(4) Criminal Appeals Act 2004 (WA); Weiss v The Queen (2005) 80 ALJR 444).
Insofar as they concern the involvement of the interpreter, the proceedings at trial did not get off to the most auspicious start. Although the interpreter was sworn, there is nothing on the transcript about his level of accreditation (if any) or qualifications. The trial Judge extended a considerable indulgence to the appellant in allowing Ms Baroud to sit with him and the court interpreter, and interpret for the appellant during the entire course of the trial other than when he was giving his own evidence. She was not sworn nor affirmed as an interpreter for the proceedings, and indeed, on no view would it have been appropriate for her to have been nor to have acted as the official court interpreter. Not only was she by then his wife, but she had been involved to some extent in his activities out of which the charge arose. She was in no sense an independent and impartial person.
The trial Judge, when explaining how that arrangement of two interpreters assisting the appellant, would work, explained it not to the appellant, but to the interpreter. He then asked the interpreter to explain it to the appellant and finally, asked the interpreter if the appellant had understood it - to which the interpreter (referring to the appellant) said "Yes, he understood". Certainly no unfairness arose from any of this, but it would have been preferable for his Honour to have simply explained it in direct speech to the appellant and then asked the appellant (through the interpreter) if he understood.
The first point of lack of continuity relied upon by the appellant arose in the same way.
The appellant commenced his examination through the interpreter just after midday on 13 August. He continued over the morning of the following day and briefly after the luncheon adjournment. On completion of his evidence‑in‑chief, the appellant's counsel said she had a matter which she wished to raise in the absence of the jury. After the jury withdrew, what occurred is reflected in the transcript, supplemented by Ms Crespo's translation. What appears in bold below, is Ms Crespo's translation of what was said by the appellant and the interpreter. I have omitted the Spanish version. "[UI]" indicates that what was said was unintelligible to Ms Crespo:
"[UI] very much… [UI] … You aren't, you aren't getting, me the, the [UI], what happened to you? What did you have for lunch? You're like absent‑minded, like absent‑minded, like… you're not [UI], like this morning.
CT:Yes, Ms. Amidzic.
INT:Uhm, excuse me, uhm, Your Honour [sic].
CT:Yes, [Mr C].
INT:I've just been hear from, uhm, Mr. Espriella a complaint that, uhm, I'm not understanding him this afternoon as well as I was understanding him this morning, and what sort of lunch I have that uhm, may cause this difference.
CT:Yes, people say unwise things sometimes in spite of themselves, don't they? You could be seated, [Mr C], thank you very much. Uhm, yes?
INT:Thank you. Many people say many things [UI] … don't worry.
VA:Yes, sir. I just want an opportunity to take some instructions from my client on that very issue.
CT:You are… you're concerned with the difficulty with the interpretation?
VA:Yes, it has been expressed - and he has obviously said it to Mr. Interpreter, as well - but it has been conveyed to me just before he was brought in.
INT:The attorney is also asking that [UI] …
CT:Yes, I'm interested in the comment from there. It appears as if the knowledge of English may be rather better than is being expressed so far, but putting that to one side, if as I understand it, if you - the appropriate procedure, subject to Mr. Agius' submissions, is that if there is concern about the completeness or accuracy of the translations given - you may lead evidence of that. We may deal with it by way of voir dire and make other arrangements for an interpreter, if it was required, or alternatively, as I would think to be the case, you might lead evidence specifically from some other person to say when the accused said X it was translated Y.
VA:Yes. If I could have a 'few moments' just with the accused within the precincts of the court, just in the backroom and…
CT:Would you like me to rise?
VA:Yes, probably that would…
INT:[UI] has informed him that [UI] …
CT:Before we do that, let me just ask Mr. Agius whether you have any different view…
INT:…the accuracy or [UI] …
CT:at odds with the observations that I have been making.
INT:…evidence, he can make some arrangements. On the other hand, if there's also evidence… that someone will say, fine, when he said this, the interpreter said that…
JVA:I don't have a different view to the first alternative, but I need to think about the second because it's beyond my experience.
INT:some arrangements can be made.
CT:I've encountered it on, uhm, once or twice, yes.
JVA:I've seen it happen, but it can happen in front of the jury as an issue of fact as to what it was that a witness…
CT:What was said…
JVA:a witness said during the course of a particular question and answer.
CT:Yes.
JVA:But that usually involves the interpreter having to be a witness, and that is the court interpreter to be examined about what it was that he was asked and what it was he said.
INT:On the other hand… he's said, well, you can also [UI] …
JVA:And that negates, then, his role as an interpreter thereafter.
CT:Of course, yes. You'd have to make other arrangements for him.
INT:[UI] …
JVA:And I'll take the opportunity to look at that provision of the Evidence Act that we looked at during the course of an earlier application…
CT:Yes.
JVA:that deals with the role of the court in, in uhm, in, uhm matters of adequacy of interpretation.
CT:You can let me know, if you would, have me take a different course. But for the moment, uhm, there's no material before me, I think, which would indicate that the court need interfere with the process in any way.
INT:Uhm, [UI] … if he wants [UI] …
JVA:Yes, it's probably too early to make any submissions, but we had at least half of yesterday with this interpreter and we continued this morning without complaint. We're just about to start cross‑examination.
INT:[UI] yesterday [UI] and just this moment, now it is that [UI] reexamine you…
JVA:If this matter is to be resolved, I'd rather have it resolved before I ask questions than halfway through.
UMV:All rise. The court will [UI] …
INT:That he says they're going to stop for 10 minutes, that your attorney wants to talk with you."
At this point, there was a break in the proceedings. When the Court resumed:
"CT:Yes, be seated, please. Yes, Ms. Amidzic?
VA:Yes, sir. Just on that issue, there is no formal application. I just wanted [sic to] appraise your Honor [sic] of what is proposed.
INT:There's no formal application with respect…
VA:The accused wishes to continue with [Mr C], the existing interpreter…
INT:proposes to continue with the [UI] interpreter…
VA:However, I propose to have an accredited interpreter present in court tomorrow, not for any formal purpose other than to assist at my end of the bar table. My client's prime issue was not so much, uhm, mistranslation of the entire sentences, but the occasional word, uhm, where a different choice of word may more accurately have conveyed the feel, or the mood of what was being conveyed.
INT:However, [UI] … complete sentence, but certain words can [UI] interpreted [UI] don't … the [UI] …
VA:And I appreciate it's something that's not easy to translate or interpret. So I've suggested to my client that perhaps we break up his answers, so that he doesn't continue with an answer until the interpreter has interpreted…
INT:[UI] … in parts, [UI] … a little at a time…
VA:what has already been said, rather than having the interpreter write down slabs of answers and then having to ask the question again and so on.
INT:[UI] opportunity [UI] to [UI] …
VA:I have also spoken to the interpreter, so I'm hopeful that that may assist further, but at this stage, I don't, there's no reason why the cross‑examination cannot commence.
INT:[UI] translating…
VA:And in respect of Your Honor's [sic] observation as to the accused from time to time being himself apparently aware of an apparent difficulty, his English is at the level of having spent the last couple of years in custody, where all of the surrounding personnel are speaking English. He has acquired something of an ability to understand the concept of what's being discussed, but he's not in a position to express back a response fully in English unless it's very basis, day‑to‑day pleasantry type of conversation.
INT:[UI] … knowledge of English [UI] …
VA:Having conveyed to him the interpreter's difficulties as well, I'm hopeful that together it can be resolved. So, we'll see how we go, I think, is the bottom line.
INT:[UI] jail…
CT:Yes, thank you, Ms. Amidzic. Did you have any observations, Mr. Agius, that you wanted to make at this stage?
INT:[UI] …
JVA:Your Honor [sic], I have had an accredited interpreter in court since some time this morning, and I have taken instructions and we have no difficulty with this interpreter continuing at all.
INT:He has an interpreter [UI] … there's no problem with the way he's interpreting…
CT:No. all right. Well, I think, I think. Thank you for that. The only observation I would make at this stage is that I'm sure I have an inherent power, uhm, to terminate the services of a particular interpreter…
INT:He knows, the magistrate judge knows has the power to terminate the services of some interpreter…
CT:but I should say that absent any evidence that would be lead [sic] in the absence of the jury to persuade me to a contrary view…
INT:uhm, that [UI]…
CT:my observation of the process of the interpreter and his services has left me with no concern whatsoever as to the accuracy of the interpretation and the effectiveness and the fairness of the process which has been adopted.
INT:has observed of the interpreter and my service … he hasn't had any great concern with the [UI] as I've been interpreting [UI] effectiveness and accuracy and fair [UI] …
CT:I think, if I may say so, that Ms. Amidzic's response to the point that was raised with her has been an appropriate one.
INT:Uhm, with respect to the obervation [sic] that has been made to you [UI] your attorney…
CT:We can have the jury back, Madam Clerk of Arraigns.
INT:Okay, we're going.
DEF:So we'll put it through here. [UI] on top and [UI] … do you think that's all right?
INT:[UI]
CT:I … it's of no interest to anybody, of course, what I thought about that, but I would, I would not want to convey to you or to anybody that I had any particular view about the accused's capacities to speak English.
INT:The judge is confirming he has no doubt about what capacity you have of English, in other words, you don't know English. You follow?
DEF:Uh‑huh. [UI] … it scares me more if he starts to complain… right? Two years are two years.
INT:[UI], uhm, no, relax…
DEF:[UI], no, because [UI] speak English [UI] take [UI] intensive. One [UI] in Cronulla [UI] … I understand a little bit now because it's been two years and [UI], but I can't …
INT:…
DEF:You follow? What [UI] is that?
INT:That… that… [UI].
DEF:¿[UI]?
INT:It's natural, to stimulate circulation.
DEF:Do you have [UI] problems, with [UI]?
INT:No, no, it's of the pressure [blood.] The thing is… the, over time, uhm, your circulatory system isn't as effective as when one is young.
DEF:Uh‑huh.
INT:So, circulation is very important because it governs organs in the brain, [UI]…
DEF:[UI] …
CT:Thank you, ladies and gentlemen. We're organized now. So, we're ready to continue. Ms. Amidzic, you did say that you hade concluded the examination in chief, did you not?
INT:[UI] … we're organized.
VA:Yes, I have, Your Honor [sic].
INT:[UI] your attorney has finished her… that you gave your statement. The prosecutor comes now."
The Judge's comment about people saying unwise things sometimes in spite of themselves, I take to be a reference to answers the appellant had just given confirming that in an intercepted telephone conversation with Mr Lalinde, the appellant had authorised Lalinde to return to Colombia to see his sick mother if that was necessary. This was of importance to the case because the appellant maintained that Lalinde had employed him.
Ms Crespo makes the point that although the discussion set out above specifically centred upon interpretation in the trial, interpretation of it for the appellant was paraphrased and incomplete. She notes that the interpreter's statement to the Court, "in poor English" omitted what the appellant had said about his "absent‑mindedness", which gave the Court inaccurate information on the appellant's complaint to the interpreter. She notes further that in the aside between the appellant and the interpreter at the end of this section, although the appellant clearly expressed fear that the Judge would be upset over his understanding of English, that was not interpreted for the record.
These criticisms must be accepted. However, much of what was being said by the appellant and the interpreter was unintelligible on the tape, no doubt because they were speaking quietly to each other. The information conveyed by the interpreter may therefore have been more comprehensive than appears from the record. Insofar as the quality of the interpretation is concerned, it is apparent the interpreter was summarising what the Judge and counsel said, not interpreting it. Nonetheless, in the circumstances, I am not persuaded this created any unfairness in the trial. Although his Honour's indication of the process which could be followed if there was dispute about the accuracy of the interpretation was not interpreted to the appellant, there was an immediate adjournment specifically for the purpose of enabling the appellant's counsel and Ms Baroud to discuss the matter with him. Having done that, counsel informed his Honour no formal application would be made and that the appellant wished to continue with the existing interpreter.
In relation to continuity, our attention is next drawn to an incident which occurred at the beginning of the third day of the appellant's testimony:
"INT:I have just heard from Mr. De la Espriella a request in reference to a word he mentioned yesterday he wants me to clarify.
CT:About a word?
NT:One word, the interpretation of that word.
CT:Yes. What was the word and what's the…
INT:Uhm, he was ref… it's in reference to - he was saying that his company - and I interpreted 'physically doesn't exist'. He said that he used… the word that he used in Spanish is material, m‑a‑t‑e‑r‑i‑a‑l, and he wants me to clarify that he said material, not physical.
CT:Goodness me. Yes, thank you, [Mr C].
DEF:'Oh, my God!'" (This was said in Spanish; it was not interpreted).

The trial Judge's sentencing observations

The learned sentencing Judge first described what he described as the "enormity of the crime" committed by the appellant and others who were engaged in the importation of what was just under one tonne in weight of cocaine into this country. His Honour pointed out that those engaged in the enterprise were all involved in it for profit alone and the profit would have been enormous. In consequence, it was not possible to "temper to any great degree" the sentence to be imposed by matters personal to the appellant which might otherwise be regarded as being in mitigation of penalty.
In this respect, his Honour was quite correct. It is clear that in large‑scale drug importations factors of deterrence must override matters personal to the offender. This was made clear by Rowland J in R v Bellissimo (1996) 84 A Crim R 465 at 469 where his Honour said:
"The effect on the young is noted by his Honour, and it can be seen dramatically almost every day in the courts and in the media. Those mature adults involved in the supply cannot be unaware of the effects that this drug has, and all, and especially those who are involved solely for the money, must be aware of the public concern that this type of activity continues. The courts must give effect to a genuine public concern. Matters personal to an offender will often, in these cases, play a secondary role in the sentencing process. Questions of general deterrence will play a greater role: see Vodanovic (p 7) and Doyle (at 363)."
The learned sentencing Judge then turned to the seriousness of the importation of the drug cocaine. He rightly pointed out that cocaine is accepted by the courts in Australia as being in the top echelon of seriousness in terms of its capacity to do harm in the community. A deterrent sentence is thus required in relation to any offender who commits the crime of importation of cocaine into this country. In this case, his Honour thought it important that the appellant's history was such that he should be regarded as a recidivist offender and there was a need for particular deterrence in relation to him as well as deterrence to others. His Honour was undoubtedly right about this because the appellant's Interpol record reveals that the appellant was arrested on 17 January 1998 "in connection with violation of the Opium Act". The record reveals that the appellant "provided a drug courier [who] was arrested on 12 January 1998 at the … international airport with an amount of 11 kg 262 grs of cocaine concealed in a dog kennel". The appellant was sentenced to imprisonment in Curacao for 4 years and 6 months. He was granted a pardon on 29 August 2000.
The learned sentencing Judge found that the quantity of cocaine seized, being just under one tonne, would have sold on the street at a per kilo rate which would have valued it at A$107 million. Once cut for street level dealing, the cocaine would have had an ultimate value to those who peddled it "through all the hierarchy of involvement" of in the order of A$400 million. His Honour did not think it was necessary to make any precise finding on the value of the drug, but felt it sufficient to say that, given the enormity of quantity, there was a potential for huge harm to members of the community. The appellant was involved in the enterprise purely for personal profit. Even if the appellant's expectation of personal profit was in the order of $300,000, which his Honour thought would probably be in US dollars, the value of the enterprise to him, even at that level, was very considerable.
The learned sentencing Judge examined the role of the appellant and determined beyond reasonable doubt that he was the person who controlled and ran the shore‑based element of the process of importation with the purpose of "injecting the drug into this community". His Honour held that the appellant had recruited Lalinde, knowing him and of his "penchant to be involved in matters of this kind" and did so in order that he would have his assistance in the driving of vehicles, interpreting in English, and providing transportation, accommodation, the provision of mobile phones and the purchase of other equipment, including a global positioning unit. His Honour found that both Lalinde and the appellant recognised that it was the appellant who was in charge of the operation in this country. He concluded from intercepted conversations with Ms Baroud in Broome that there was powerful evidence to support that conclusion, but there was also evidence in the recorded conversations of Lalinde and the appellant.
The learned sentencing Judge fell short of finding that the appellant was a principal in the overall importation, but he considered the appellant's role to be crucial to the success of the enterprise. He found it to be the appellant's role (with Lalinde) to provide the incoming vessel with a remote location where the drug could be landed and then transported elsewhere.
The learned sentencing Judge made reference to the roles played by others who had been arrested. He distinguished the role of the appellant from that of Suarez‑Mejia (who was sentenced to life imprisonment with a minimum term of 20 years) and that of Reaves (who was sentenced, on appeal, to life imprisonment with a minimum term of 18 years). Reaves' responsibility was described as providing the vessel, captaining it and using his nautical skills to ensure that the vessel could be taken to a place where, on the high seas, the cocaine could be received from another vessel and then brought via the Cape of Good Hope across the Indian Ocean to the Western Australian coast at a location to be found by the appellant. His Honour noted that the learned sentencing Judge who dealt with Reaves had concluded that Reaves was to take no part in the activities in relation to the drug once it had been landed in Australia. The learned sentencing Judge had found that Reaves' responsibility was less than that of Suarez‑Mejia and his Honour agreed with that conclusion. He also concluded that his responsibility was not as great as that of the appellant.
His Honour then turned to Suarez‑Mejia. He found that he had an important role to play onboard the incoming vessel. He was described as the "trusted agent of the principals" who were consigning the drug to Australia. His task was to guard, keep safe and ensure the safe landing of the drug. Because the appellant was to ensure the safe reception of the drug on land and to ensure that it was not detected and was then introduced into the country, it was concluded that there was little to distinguish between the roles played by Suarez‑Mejia on the one hand, and the appellant on the other. His Honour specifically rejected the proposition that the appellant was to have no direct contact with the drug. He rejected the appellant's case that he was solely concerned in assisting the crew who brought the drug in.
The learned sentencing Judge turned finally to the appellant's personal circumstances. He found them to be similar to those of Suarez‑Mejia. Each had a prior conviction for an offence of a similar kind. Each was of about the same age (the appellant was born 11 May 1969 and Suarez‑Mejia 13 August 1969). Each would be in prison at a remote distance from their country of origin and cut‑off from their community, family and friends for a very long period of time. The one distinction between the two was that Suarez‑Mejia had pleaded guilty, accepted his responsibility and co‑operated in the processes of the law.
His Honour stressed that the appellant was not to be sentenced more severely because he pleaded not guilty and it was only the case that the plea of guilty of Suarez‑Mejia was an element of mitigation in his sentence which was not present for the appellant.
After making reference to the maximum penalty applicable (a fine of $750,000 and a sentence of imprisonment for life), his Honour considered that, notwithstanding such matters as existed in mitigation of sentence, the enormity of the offence required that there was no alternative but to impose a sentence of life imprisonment. There is no challenge to that sentence on this application for leave to appeal.
His Honour then fixed a non‑parole period. In this respect he felt circumscribed by the sentences that had already been imposed in relation to the appellant's co‑offenders. The non‑parole period fixed was 26 years, with the sentence backdated to 27 July 2001.

Grounds 1, 2 and 3

Ground 1 essentially contends that the non‑parole period of 26 years was manifestly excessive, primarily because the appellant was not a principal in the importation and played a comparatively subordinate role compared to those who had undertaken the primary task of organising the offence.
Ground 2 contends that the 26 year non‑parole period offended the parity principle when compared to the offences imposed upon the appellant's co‑offenders by reason of the fact that there was little to distinguish the roles played in the importation by the appellant and Suarez‑Mejia on the one hand, and the role of Reaves was, at best, marginally inferior to that played by the appellant. Although there were some grounds for distinction between the position of the appellant and the co‑offenders, particularly by reason of the pleas of guilty of the co‑offenders, the differential in the non‑parole period was said to be too great in the appellant's case.
Ground 3 contends that the 26 year non‑parole period was manifestly excessive when regard is had to the learned sentencing Judge's conclusion that the appellant was not a principal. The prosecution had asked that the appellant be treated on the basis that he was a principal, but that submission had been rejected. The non‑parole component was contended to be appropriate to that of an offender who had participated in the importation as a principal.

Ground 1

Counsel for the appellant contended that there was significance in the fact that at trial, counsel for the prosecution had submitted to the jury that it was the prosecution case at its highest that the appellant had recruited Lalinde, but contended that the appellant could still be convicted of the offence with which he was charged even if the jury was to find that all that the appellant performed was the limited role of directing Lalinde and having Lalinde do some of the work in relation to the importation.
Reference to the closing address of the prosecutor reveals that it was put confidently by the prosecutor to the jury that although it was not a necessary part of the prosecution case that the appellant had recruited Lalinde, there was plenty of evidence upon which the jury could make that finding beyond reasonable doubt. Most of it was said to come from the appellant himself and particularly in the intercepted conversation with Ms Baroud to which I have already referred. The prosecutor spent considerable time impressing upon the jury that everything pointed to the appellant as "leader of the shore party". The following extract is indicative of what was said:
"We have asked you to look at this task from above, to put yourself in the shoes of the Columbian [sic] drug dealers who have put so much money and effort into this importation and we have asked you to consider why it would be; what role would there be for a person like the accused if he knew nothing and if he was basically here to do very little? Why would the enterprise be risked on a person like him? Why would they spend money on a person like him with that limited role?
Bear in mind that he's in Australia doing this and he's here for 5 months. He's not in Columbia [sic]. He's not there where the cartel with their armed bands can follow him around; he's here. Why would they run that risk with somebody to do so little and pay him money? So when you step back from it, it makes no sense."
Ultimately, at the very end of his address to the jury, the prosecutor said:
"Even if that is the limited role that the accused has carved out for himself, directing Lalinde, having Lalinde do some of the work, even if that's all he does, it's our case that he's still knowingly concerned in this importation because to make this importation a success, to assist in that importation, he has to provide an exist [sic] for these people who come on the ship. Someone is going to do that. So in the very least that remains, but, of course, long before he does that he has recruited Lalinde; he has directed Lalinde; he has been in telephone contact with the ship; he has given them latitude and longitude; he's talking to Lalinde about both of them meeting."
There is no reason why the prosecutor could not have put the case as he did, and irrespective of the way in which the prosecution put the case against the appellant, it was for the trial Judge, when sentencing, to make findings and he was in no way obliged to impose a sentence according to the evidence most favourable to the offender: Cheung v The Queen (2001) 209 CLR 1. As Gleeson CJ, Gummow and Hayne JJ said, at [6] ‑ [7]:
"What the jury had to decide was whether, between two specified dates, the appellant was knowingly concerned in the importation of heroin that occurred on 9 May 1989. A variety of questions of potential relevance to the duration and extent of his involvement were raised by the evidence; but some of them, although potentially significant for sentencing purposes, were not questions which the jury had to decide in order to reach a conclusion that the appellant was guilty of the offence charged. They were questions which, if capable of resolution at all, were to be resolved by the sentencing judge.
It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing."
The primary submission of counsel for the appellant was that a non‑parole period of 26 years was outside the discretionary range available to the learned sentencing Judge because the appellant was not a principal in the importation and the sentence was demonstrably manifestly excessive. It was submitted that such a non‑parole period was commensurate with that appropriate for an offender at a significantly higher level in the hierarchy of importation.
Reference was made to two New South Wales cases. The first was R v Gonzalez‑Betes [2001] NSWCCA 226 which involved the importation of 225 kilograms of cocaine and where a "middle‑level executive" was sentenced to life imprisonment with a non‑parole period of 22 years. The record (and that was relied on more than the first) was R v Bateman [2000] NSWSC 915, where what was described as over 3.834 tonnes of pure cocaine had been imported and the offender had been in charge of arrangements made for collecting and transporting the cocaine after it arrived in Sydney. Subsequent examination revealed that counsel for the appellant had inadvertently mistaken the amount imported by reference to a somewhat confusing report of the case. The amount actually imported was 502 kilograms with a net weight of pure cocaine of 383 kilograms. The offender was sentenced to 13 years imprisonment with a non‑parole period of 8 years, but there were marked differences between that case and this. The differences included the fact that Bateman pleaded guilty, gave considerable assistance to the authorities, undertook to give evidence against others, and had various other mitigating factors in his favour. The learned sentencing Judge gave a discount of 50 per cent on the sentence which would otherwise have been imposed and then further reduced the sentence under s 16G of the Crimes Act 1914 (Cth) by one‑third. His Honour said that he would have imposed something close to a life sentence and substantially exceeding a sentence of the order of 30 years were it not for the factors which brought about the discount. Calculations suggest that the commencing point must have been a sentence of around 40 years which was reduced to 20 years for the plea of guilty, co‑operation and other factors, and then further downwardly adjusted by one‑third to end up with 13 years. It can be seen immediately that the case is distinguishable from the present.
At the time the appellant was sentenced, the importation of cocaine on the "White Dove" was the largest importation of cocaine ever made into Australia. The selection of the weight of narcotic as a chief factor in fixing sentence is inappropriate (Wong v The Queen (2001) 207 CLR 584) but there is no suggestion that the learned sentencing Judge did that in this case. Nor should this Court pay particular attention to the weight of the cocaine imported. It simply demonstrates the size of the operation.
As Gaudron, Gummow and Hayne JJ said at 608:
"In general, … the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed."
In my view, the non‑parole period of 26 years imposed by the learned sentencing Judge was well within the range that could have been expected in light of his Honour's conclusions to which I have made reference. Counsel for the appellant really concluded his submission on this ground by saying that the 26 year period was simply "too great". No error on the part of the learned trial Judge was pointed to, nor could any such error be pointed to.
In these circumstances, it would be wrong for this Court to substitute its own opinion for that of the learned sentencing Judge. It was essentially a discretionary judgment and the observations of the High Court in Lowndes v The Queen (1999) 195 CLR 665 at [15] are entirely apposite to this case:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass ((1993) 72 A Crim R 561) and R v Clarke ([1996] 2 VR 520). Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic (House v The King (1936) 55 CLR 499). The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
I can see no substance in the first ground of appeal.

Ground 2

Counsel for the appellant submitted that the appellant's role ought to be viewed as no higher or no more important to the operation than that of his co‑offenders. Reliance was placed on an observation of Malcolm CJ in R v Reaves [2004] 147 A Crim R 26 at [36] that he was not "entirely persuaded that Reaves' criminal responsibility was less than that of the other two offenders". This observation was not shared by Steytler J who, at [78] said:
"In all of the circumstances, taking into account the respective levels of involvement and degrees of culpability or criminality of the three men, and allowing for relevant differences between them (as to which see Postiglione v The Queen (1997) 189 CLR 295; 94 A Crim R 397) it seems to me that parity would require that the non‑parole period of Reaves be less than that imposed in the case of either of the other two offenders. Taking into account, amongst the other matters to which reference has been made, the fact that this is a Crown appeal (as to which see R v Clarke [1996] 2 VR 520 at 522 – 523; (1996) 85 A Crim R 114 at 115-116 and the authorities there cited), the fact of Reaves' extensive criminal record, the fact that he is considerably older than either of the other two men and also the fact that, on completion of his sentence, he is likely to be extradited to the United States where, for reasons given by the Chief Justice, he may yet face further sanctions arising out of his parole violations in that country (although much seems to turn upon the view which the United States authorities will take of the sentence imposed by this Court), it seems to me, as it does to the Chief Justice, that an appropriate non-parole period would be one of 18 years."

Steytler J made no suggestion that there had been any error in the conclusion of Murray J when sentencing this appellant, that the position of Reaves in the hierarchy and his criminal responsibility was less than that of Suarez‑Mejia and the appellant. Wheeler J agreed with both Malcolm CJ and Steytler J as to the outcome of the appeal, but expressed no view about the respective levels of involvement of the three offenders.
The submission of the appellant that the role of the appellant in the enterprise should not be viewed as any greater than that of his co‑offenders is based upon the proposition that the appellant played no role in procuring the drug or exporting it from Colombia and nor in its ultimate dissemination in Australia. The latter submission was not accepted by the learned trial Judge who considered that the appellant would have played a role in the ultimate distribution of the drug in Australia. In my view, it was entirely open to his Honour to reach that conclusion. Although counsel for the appellant submitted that the involvement of the appellant was "comparatively minor" and he was in no way a more senior or higher figure in the arrangements than his co‑offenders, the categorisation of his involvement as comparatively minor does not accord with the facts at all.
In the end, the submission came down to the proposition that the non‑parole period was nearly half as great again as that imposed on Reaves and 40 per cent greater than that imposed on Suarez‑Mejia and was, therefore, manifestly excessive, both viewed in isolation and also by reference to the offences imposed on the co‑offenders.
Counsel for the appellant relied, in written submissions, upon R v Olbrich (1999) 199 CLR 270 and quoted a passage from the judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ at [14]. That passage was quoted only in part. What their Honours said is important to the question of the rating in the hierarchy of the offenders in the criminal enterprise under consideration in this appeal. It was:
"It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co‑offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate."
At [19] their Honours pointed out that it will not always be either necessary or helpful to distinguish between the precise roles played by offenders in drug importations:
"Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did."
Accordingly, in the present case, it seems to me that it is by no means essential to reach any conclusion about the precise role played by the three offenders, Reaves, Suarez‑Mejia and the appellant respectively. It is sufficient to say that they were each involved in the importation of a massive quantity of cocaine into this country and in circumstances where, as observed by Steytler J in R v Reaves (supra) at [78], parity required that the non‑parole period of Reaves (who pleaded guilty) be less than that imposed in the case of the other two offenders. As between the other two offenders, Suarez‑Mejia pleaded guilty, but the appellant pleaded not guilty. As a result, there was necessarily a disparity between the non‑parole period imposed in relation to each. Further, the Crown appealed the sentence imposed upon Suarez‑Mejia, and although the appeal was dismissed, Parker J (with whom Murray and Miller JJ agreed) described the 20 year non‑parole period as being at the lenient end of the appropriate range, if not at its lowest extremity: R v Suarez‑Mejia (2002) 131 A Crim R 577 at [68].
In Postiglione v The Queen (1997) 189 CLR 295, at 301 ‑ 302, Dawson and Gaudron JJ summarised the parity principle in sentencing in these terms:
"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (Lowe v The Queen (1984) 154 CLR 606 at 610 ‑ 611, per Mason J). In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error (Lowe v The Queen at 617 ‑ 618 per Brennan J). Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance' (Lowe v The Queen at 610 per Gibbs CJ; at 613 per Mason J; and 623 per Dawson J). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co‑offenders in question and their different degrees of criminality."
Applying these principles to the present case, it is clear that there were different circumstances which related to the co‑offenders. There were different degrees of criminality as between Reaves on the one hand, and Suarez‑Mejia and the appellant on the other. There were pleas of guilty at the first opportunity by both Reaves and Suarez‑Mejia and a degree of co‑operation with authorities by each. These factors revealed material differences between the appellant and his co‑offenders and necessarily led to a different outcome in the sentence pronounced upon the appellant.

Ground 3

This ground was not separately argued by counsel for the appellant. It is effectively absorbed into ground 1.

Conditions of imprisonment

Although not raised in the grounds of appeal, counsel for the appellant submitted to this Court that an important factor to be taken into account in the sentencing of the appellant was the fact that since being sentenced he has been held in the Special Handling Unit of Casuarina Prison. Letters from the Assistant Superintendent, Special Units at Casuarina Prison and from the Superintendent of Casuarina Prison, dated 9 and 22 November 2005 respectively, were handed to the Court. These confirmed that the appellant had indeed been kept in the Special Handling Unit. There is also reference to the fact that the appellant has been afforded opportunities which prisoners in lesser security regimes do not have. It appears that he has access to Spanish literature from the prison library.
Counsel for the appellant sought to put before the Court information about the conditions in the Special Handling Unit, but there was no agreement with counsel for the respondent about the issue and there is simply no evidence before the Court as to what differences there may be between the Special Handling Unit and the normal part of the prison.
Whilst it is true that the conditions under which an offender is required to serve a sentence is a relevant matter to be taken into account by a sentencing Judge (York v The Queen (2005) 221 ALR 541), the matter was never raised before the learned sentencing Judge and there is insufficient material before this Court to suggest that the appellant is unduly prejudiced by the circumstances in which he is serving his sentence. If (as appears from the letters to which I have referred) the appellant is in the Special Handling Unit for security and management reasons, one can understand that. As a Colombian national and having been convicted as playing a part in a highly‑organised, large‑scale importation of cocaine from overseas, he is regarded as some sort of security risk. In my view, there is insufficient evidence in the argument put forward by the appellant on this aspect of the matter to suggest that the sentence imposed upon the appellant was in any way excessive.

Conclusion

In my view, there is no substance in the grounds of appeal advanced on behalf of the appellant either in relation to conviction or in relation to sentence. I would dismiss the appeal against conviction and grant leave to appeal against sentence, but dismiss the appeal.